The new rules provide for the FAI to be more flexible, efficient and effective with witness evidence presented by way of written statement or video where possible. The main goal appears to be an improvement in efficiency and consistency, with modernised rules to reflect other changes in the Scottish justice system.

Such efficiency is sought by an increase in the sheriff's power, with the inquiry becoming more inquisitorial and the sheriff less dependent on simply hearing evidence presented by the crown and other parties. A sheriff has the ability to direct proceedings and can order that expert evidence be presented by a single expert.

The Act itself does not have any provisions that have an impact on a clinician's day to day practice. However, the outcome of an FAI might include recommendations to which a clinician (or the organisation they work for) might be required to respond.

The changes

Beyond handing more power to the sheriff the main changes include:

more flexibility over the location of an inquiry
linked events may cause a single inquiry to be held in one central location
inquiries held into the death of people who normally live in Scotland but die abroad
new mandatory Inquiries into the deaths of children in secure accommodation and deaths in 'police locations'
a written response to any recommendations set out by the sheriff at the end of the FAI, setting out what has and has not occurred.

Any death is investigated by the procurator fiscal who has always had the power to require health professionals to provide them with clinical records and a statement (known as a precognition) before the start of the FAI.

The new rule to allow evidence to be led by witness statement or video recording is a welcome advance - it may avoid clinicians being required to appear in court to give oral evidence. The statement will take time to agree and it is advisable to seek early experienced advice from the MDU to ensure you avoid loopholes or areas where criticism may arise.

One practical difficulty in the new system is the need to front load investigations. Previously, as party to an inquiry, a clinician's legal representative has had a relatively free hand. We could obtain our own expert evidence if the crown expert was critical. There was no need to declare it and if it was less than helpful, then it would not be used and we could simply seek to better our client's position through careful cross examination.

Now, early permission will be required to lead our own expert - possibly before we have any report - and in light of the sheriff's power to order a joint expert there is no guarantee of such permission.

Fatal Accident Inquiries in Scotland: an update

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Laura Donald

Fatal Accident Inquiries in Scotland: an update